



COURT OF APPEAL FOR ONTARIO

CITATION: M.W. v. Halton (Police Services
    Board), 2020 ONCA 463

DATE: 20200716

DOCKET: C67115

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

M.W.

Plaintiff (Appellant)

and

Halton Regional Police Services Board
    and Constable Ross Amore

Defendants (Respondents)

Davin Charney, for the appellant

Robin A.F. Squires and Natalie T.
    Salafia, for the respondents

Heard: May 22, 2020 by videoconference

On appeal from the judgment of Justice Clayton
    Conlan of the Superior Court of Justice, dated May 24, 2019, reported at 2019
    ONSC 3176.

REASONS FOR DECISION

I.

INTRODUCTION

[1]

This is an appeal from a partial summary judgment dismissing certain
    claims in an action commenced by the appellant, M.W., against the respondents,
    the Halton Regional Police Services Board and Detective Constable Ross Amore.

[2]

The action arises out of two interactions between M.W., the Halton
    Regional Police Service (the HRPS) and D.C. Amore. The first interaction took
    place on February 18, 2015 when M.W. was questioned at the police station about
    an alleged assault against one of his sons Co. (no charges were laid). The
    second interaction took place on March 23, 2016 when M.W. was arrested and
    charged with assaulting his daughter Ca. (the charge was subsequently
    withdrawn by the Crown).

[3]

M.W. sued for damages for false arrest, false imprisonment, negligent
    investigation, malicious breach of public duty, malicious prosecution,
    misfeasance in public office and for violation of his rights under ss. 7, 9 and
    10(b) of the
Canadian Charter of Rights and Freedoms
.
    He claimed that, on February 18, 2015, he was detained and investigated by the
    HRPS for allegedly assaulting his son Co. without being given his right to
    counsel and without a proper caution, that the allegations of assault were
    found to be unsupported, and that he was released unconditionally from the
    police station. M.W. further claimed that, on March 23, 2016, he was again investigated
    for allegedly assaulting Co. (these allegations were found to be unsupported),
    that in the course of the investigation his children were manipulated into
    making broad incriminating statements against him, and that he was arrested that
    day for assaulting his daughter Ca. without reasonable and probable grounds.

[4]

In their statement of defence, the respondents pleaded the facts leading
    to the investigation of M.W. for assault on Co. in February 2015 and March
    2016. They confirmed that no criminal charges were laid against M.W. in
    February 2015 and denied that M.W.s rights under the
Charter

had been infringed. The respondents pleaded that there
    were reasonable and probable grounds to arrest and charge M.W. with assault on
    March 23, 2016, after Ca. disclosed, during her conversation with D.C. Amore
    that day, details of an assault by M.W. in July 2015, and that once charges
    were laid, any decision as to whether the charges would proceed through
    prosecution rested in the hands of the Crown.

[5]

The respondents moved for summary judgment dismissing the action on the
    basis that there was no genuine issue requiring a trial as: (1) D.C. Amore had
    reasonable and probable grounds to arrest and charge M.W. with assault; and (2)
    M.W. was not detained on February 18, 2015.

[6]

The evidence on the motion included the affidavits of D.C. Amore, Detective
    Constable Wendy Clayton (D.C. Amores partner at the time, who was also
    involved in the investigation of M.W.) and M.W., the transcripts of their
    cross-examinations, and various exhibits. These consisted of the transcript
    from the court proceeding respecting the withdrawal of charges against M.W., the
    video-taped interviews of M.W., his wife and children on February 18, 2015 and
    March 23, 2016, file notes from the Halton Childrens Aid Society (the HCAS),
    and email exchanges between the HRPS and the Crown.

[7]

After considering the evidence on the motion and the arguments of
    counsel, the motion judge dismissed all of M.W.s claims, except for the claim
    that his
Charter
rights had been violated in the context of what
    happened at the police station on February 18, 2015.

II.

THE REASONS OF THE MOTION JUDGE

[8]

In his endorsement, the motion judge referred to what he characterized
    as a concession by M.W.s counsel that all causes of action pleaded, except
    for the
Charter
claims, ought to be dismissed if [the] Court sides
    with the Defendants and holds that there is no genuine issue for trial on
    whether the Police had reasonable and probable grounds for the arrest of M.W.
    on March 23, 2016: at para. 19. Citing
R. v. Storrey
, [1990] 1 S.C.R.
    241, at pp. 250-51, the motion judge set out the test for reasonable and
    probable grounds for an arrest: the arresting officer must have had
    subjectively reasonable and probable grounds on which to base the arrest and
    these grounds must be justifiable from an objective point of view. The motion
    judge noted that the only issue was whether D.C. Amores subjective grounds
    were objectively reasonable in the circumstances. He concluded that they were.

[9]

The motion judge rejected M.W.s submission that the HRPS ought to have
    investigated further before arresting him, and for example, questioned the HCAS
    worker who was present when Ca. was interviewed on March 23, 2016. It was
    submitted that if the HRPS had done so, they would have discovered that at the
    time the allegation was disclosed, the HCAS did not verify the incident. In
    rejecting this submission, the motion judge noted that there was nothing
    improper about arresting someone based on the uncorroborated allegation of one
    witness, as child abuse is rarely witnessed by others and is often not brought
    to the attention of the Police right away: at para. 23. Acknowledging that the
    objective component of the test set out in
Storrey

must be looked at contextually, he referred to the fact
    that Ca. made the allegation spontaneously, that she provided detail, and that
    her allegation was not isolated from two prior complaints received by the HRPS
    that M.W. had assaulted another one of his children.

[10]

After
    concluding that D.C. Amore had reasonable and probable grounds to arrest M.W.,
    the motion judge dismissed the following causes of action on a final basis:
    false arrest, false imprisonment, negligent investigation, malicious breach of
    public duty, malicious prosecution, and misfeasance in public office.

[11]

The
    motion judge then turned to the issue of M.W.s
Charter
claims. He
    concluded that there was a genuine issue for trial, namely whether M.W. was
    detained when he was questioned by the HRPS on February 18, 2015. After setting
    out the legal test for detention, he noted that the evidence was conflictual
    and required an assessment of the credibility of the HRPS, D.C. Amore and M.W.,
    and that a trial was thus clearly required. He observed that, if pressed to
    make a determination of the issue, not only would he find that a genuine issue
    remained, he would also likely find that the preponderance of the evidence
    filed to date suggested that there had been a detention. The
Charter
claims were therefore permitted to proceed.

III.

ISSUES

[12]

For
    convenience, we have grouped M.W.s arguments into three issues, which we will
    address in turn:

1.

Did the motion judge make a reversible error in concluding that there
    were reasonable and probable grounds for M.W.s arrest on March 23, 2016?

2.

Did the motion judge err in dismissing all of the tort claims?

3.

Did the motion judge err in granting partial summary judgment?

IV.

ANALYSIS

(1)

Standard of review

[13]

For this court to interfere with the motion judges partial summary
    judgment, M.W. must demonstrate an error of law or a palpable and overriding
    error of fact or of mixed fact and law:
Hryniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87, at paras. 81-84. The parties agree that the motion
    judges findings of fact are entitled to deference absent a palpable and
    overriding error but that his ruling as to whether the facts are sufficient at
    law 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;

Tremblay v. Ottawa (Police
    Services Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras.
    43-45.

(2)

Did the motion judge make a reversible error in concluding that there
    were reasonable and probable grounds for M.W.s arrest on March 23, 2016?

[14]

M.W.s
    main argument on appeal is that D.C. Amore did not have reasonable and probable
    grounds for his arrest on March 23, 2016.

[15]

Although,
    as we discuss below, the concession of M.W.s counsel was not as broad as the
    motion judge noted, the focus on the motion was on whether there were reasonable
    and probable grounds for M.W.s arrest. The presence or absence of reasonable
    and probable grounds was characterized as the lynchpin of M.W.s tort claims,
    at least in respect of the March 23, 2016 incident. Because there was no
    dispute that the arresting officer had subjective grounds for the arrest, the question
    was whether those subjective grounds were objectively reasonable. Objectively
    reasonable grounds exist when a reasonable person, standing in the shoes of the
    police officer, would have believed that reasonable and probable grounds
    existed to make the arrest:
Storrey
, at p. 250.

[16]

M.W.
    asserts that there were no objectively reasonable grounds because the HRPS
    failed to conduct a reasonable investigation before arresting him. M.W.
    contends that the investigation in this case was insufficient. Ca. disclosed
    the alleged assault by her father in the span of two minutes during an
    interview concerning an alleged assault on Co. When asked whether she told
    anyone, she replied Igor (the name of the HCAS worker that was at her side
    during the interview). The HRPS did not ask for further details, interview
    Ca.s siblings about the incident, or question the HCAS worker, except to ask
    him to confirm that Ca. had disclosed the complaint to him.

[17]

M.W.
    does not argue that a two-minute investigation is insufficient in all cases. Rather,
    he contends that, in the context of this case, where the alleged incident
    occurred some eight months earlier, and where it would have been convenient to interview
    Ca.s siblings and the HCAS worker, these additional steps should have been
    taken before he was arrested. M.W. contends that the motion judge, in
    concluding that there were objectively reasonable grounds for his arrest,
    failed to consider these shortcomings in the investigation. He asserts that the
    HRPS ought to have explored the reliability of the information Ca. provided and
    ought to have taken into consideration all of the information that was
    available: see
Dix v. Canada (A.G.)
, 2002 ABQB
    580, 7 Alta. L.R. (4th) 205, at paras. 355-57. In support of his argument, M.W.
    points to the following passage in
R. v. Golub

(1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 21,
    leave to appeal refused, [1997] S.C.C.A. No. 571: In deciding whether
    reasonable grounds exist, the officer must conduct the inquiry which the
    circumstances reasonably permit. The officer must take into account all
    information available to him and is entitled to disregard only information
    which he has good reason to believe is unreliable. Here, according to M.W.,
    the motion judge ignored the context of the very limited investigation conducted
    by the HRPS when he concluded that D.C. Amore had objectively reasonable
    grounds for his arrest.

[18]

We
    disagree. Contrary to M.W.s submission, the motion judge did not ignore the
    alleged shortcomings in the investigation or the context when considering
    whether there were objectively reasonable grounds for the arrest. The motion
    judge correctly concluded that there were reasonable and probable grounds for
    the arrest based on Ca.s spontaneous allegation that she had been pushed down
    and then choked by her father. He referred to the need to look at the objective
    component contextually, noting that Ca. made the allegation spontaneously in
    the context of an investigation of an alleged assault against her brother, that
    she provided detail, and that her allegation was not isolated from two prior
    complaints received by the HRPS that M.W. had assaulted another one of his
    children.

[19]

In
    challenging the thoroughness of the police investigation in this case, M.W.
    does not suggest that Ca.s allegation was unreliable or false. Rather, he
    contends that the HRPS should have taken further investigative steps, namely by
    asking Ca. substantive questions about her allegation and by conducting
    interviews with other possible witnesses who could have provided potentially
    exculpatory evidence. For example, he submits that if the HCAS worker had been
    interviewed, the HRPS would have learned that the agency had concluded that
    Ca.s allegation that she had been assaulted in July 2015 was unverified, and
    for that reason had not been reported to the police. We agree with the motion
    judge that the fact that Ca.s complaint was not verified by the HCAS would
    not have changed the assessment of whether there were reasonable and probable
    grounds for the arrest.

[20]

D.C.
    Amore was reasonably entitled to make his decision to arrest M.W., based on the
    reliable information he had at the time of the arrest, and not based upon what
    he or anyone else learned later:
495793 Ontario Ltd.
    (Central Auto Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241,
    at para. 50, citing
Wong v. Toronto Police Services Board
,
    [2009] O.J. No. 5097 (S.C.), at para. 61. D.C. Amore was not 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 that there is no valid defence before being able
    to establish reasonable and probable grounds:
Tremblay
,
    at para. 60. See also
Payne v. Mak
, 2018 ONCA
    622, 78 M.P.L.R. (5th) 179, at para. 47.

As Juriansz J.A. noted in
Tremblay
, at para. 64, the words all information
    available in the passage in
Golub

cited by M.W. refers to the information the officer had
    in his or her possession, not additional information that the officer could
    have had upon a simple inquiry.

[21]

In
    our view, the evidentiary record on the summary judgment motion, which included
    the video recording of Ca.s interview, the history of the prior interactions
    between the HRPS and M.W. in connection with complaints from Co.s school, and
    the confirmed fact that Ca. had disclosed the assault to the HCAS worker, fully
    supports the motion judges conclusion that D.C. Amore had objective grounds
    for M.W.s arrest.

[22]

M.W.s
    second argument on this ground of appeal is that the motion judge wrongly
    relied on a finding that the facts of
J.H. v. Windsor Police Services Board
    et al.
, 2017 ONSC 6507, 44 C.C.L.T. (4th) 257 were similar to the facts of
    this case in support of his finding of reasonable and probable grounds. There
    is no merit to that assertion. The motion judge referred to this case only for
    a convenient summary of the applicable legal principles in the context of
    motions for summary judgment. While he described the case as dealing with a
    similar motion to dismiss a similar claim, he did not rely on any findings in
    that case to support his analysis. He did not use the case as a precedent in
    finding that there were reasonable and probable grounds in the present case.
    Indeed, the motion judges analysis was focused on whether  on the evidence
    before him  objectively reasonable and probable grounds for M.W.s arrest had
    been made out.

[23]

As
    his third argument on this issue, M.W. argues that the motion judge erred in
    failing to draw an adverse inference from the respondents failure to produce
    affidavit evidence from the HCAS worker to whom Ca. disclosed the assault and
    the Crown counsel who negotiated the resolution of the charge against him.

[24]

Under
    r. 20.02(1) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on the hearing of a summary judgment motion, the court
    may, if appropriate, draw an adverse inference from the failure of a party to
    provide the evidence of any person having personal knowledge of contested
    facts. An adverse inference can be drawn against a party who, in the absence of
    an explanation, does not testify or fails to provide the evidence of a material
    witness over whom he or she has exclusive control. Such failure amounts to an
    implied admission that the evidence of the absent witness would be contrary to
    the partys case or at least would not support it: Sidney N. Lederman, Alan W.
    Bryant & Michelle K. Fuerst,

The Law of
    Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada Inc., 2018),
    at para. 6.471.

[25]

This
    argument, which was not made at first instance, cannot succeed. The respondents
    placed before the court all the evidence they considered necessary on the
    motion for summary judgment. While the respondents bore the evidentiary burden
    of demonstrating that there was no genuine issue for trial, they were not
    obliged to put the evidence of every possible witness before the court. If M.W.
    had considered the evidence of these witnesses, who were not witnesses over
    whom the respondents had exclusive control, to be important in his response to
    the summary judgment motion, he could have required their attendance for
    examination under r. 39.03.

[26]

For
    these reasons, we do not give effect to M.W.s argument that the motion judge
    erred in concluding that there were reasonable and probable grounds for his
    arrest on March 23, 2016.

(3)

Did the motion judge err in dismissing all of the tort claims?

[27]

We
    would, however, give effect to M.W.s submission that the motion judge erred in
    dismissing the non-
Charter
claims in relation
    to the February 2015 incident without making findings with respect to those
    claims. M.W. asserts that the motion judge referred to a concession that was
    not made, that all causes of action pleaded, except for the
Charter
claims, ought to be dismissed if [the] court  holds that there is no genuine
    issue for trial on whether the Police had reasonable and probable grounds for
    the arrest of M.W. on March 23, 2016.

[28]

The
    transcript of the hearing discloses that M.W.s counsel stated that whether
    there were reasonable and probable grounds for the arrest was the lynchpin
    for the tort claims. However, later in his submissions he said the following:

We would submit that as reasonable and probable grounds remain
    in
question
with respect to the arrest and charge in
    March of 2016, the false arrest and negligence claims should survive. The false
    imprisonment in 2015 should also survive. If they do, I submit weve been
    largely successful and we would oppose partial summary judgment on this matter.

[29]

M.W. did not concede that only the
Charter

claims would survive in relation to the February 2015 incident. Rather, his
    position was that he had
Charter
claims, as well as tort claims, in
    relation to that incident. In his statement of claim, M.W. pleaded negligent
    investigation in respect of the February 2015 interaction and broadly pleaded
    misfeasance in public office. These claims do not hinge on whether D.C. Amore
    had reasonable and probable grounds to arrest M.W. Indeed,
for the
    purposes of a claim for negligent investigation, the conduct of a reasonable
    police officer may vary depending on the stage of the investigation and the
    legal considerations:
Barclay
, at para. 48. Moreover,
    a claim for misfeasance in public office centres on the deliberate unlawful
    conduct of a public official:
Trillium Power Wind
    Corporation v. Ontario (Natural Resources)
, 2013 ONCA 683, 369
    D.L.R. (4th) 90, at para. 38.

These claims could not be
    dismissed on the basis that D.C. Amore had reasonable and probable grounds for M.W.s
    arrest on March 23, 2016. As such, the motion judge ought not to have dismissed
    all claims other than the
Charter

claims in relation to the
    February 2015 incident. M.W. is entitled to pursue these claims.

(4)

Did the motion judge err in granting partial summary judgment?

[30]

M.W.
    submits that the motion judge erred in granting partial summary judgment
    without considering whether it was appropriate in the context of the litigation
    as a whole. Essentially, his argument is that the determination of whether he
    was unlawfully detained in February 2015 is also relevant to his tort claims in
    respect of the March 2016 arrest, and that for this reason, all of the claims
    should have been allowed to continue.

[31]

We
    disagree. This was an appropriate case for partial summary judgment. The March
    2016 claims, which were decided on the basis of reasonable and probable grounds
    for arrest, could be determined separately from the February 2015 claims. This
    is not a case where intertwined claims could lead to inconsistent results, as was
    the case in

Baywood Homes Partnership v. Haditaghi
,
    2014 ONCA 450, 120 O.R. (3d) 438, at paras. 37-38 and
Butera
    v. Chown, Cairns LLP
, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para.
    38.

[32]

There
    were two distinct issues before the motion judge: the first was whether D.C.
    Amore had reasonable and probable grounds for M.W.s arrest in March 2016, and
    the second was whether M.W. was unlawfully detained in February 2015. While it
    is correct to say that the evidence about M.W.s treatment in February 2015 would
    have been relevant to M.W.s claims based on the investigation and arrest that
    took place in March 2016 had these claims continued, the March 2016 claims were
    disposed of on the basis that there were reasonable and probable grounds for
    M.W.s arrest. The motion judge was able to determine the question of
    reasonable and probable grounds for M.W.s arrest in March 2016, something that
    everyone agreed was determinative of the claims asserted in respect of the
    events that took place on that date. The finding that there were reasonable and
    probable grounds for M.W.s arrest in March 2016 meant that his claims in respect
    of that date could not succeed, and it was accordingly appropriate that this
    part of the litigation be determined by summary judgment.

[33]

Although
    the events of February 2015 provided some background and context for what
    occurred in March 2016, the tort and
Charter

claims alleged in relation to the events of February
    2015 involve separate issues that do not depend on a finding of reasonable and
    probable grounds for arrest. It is therefore appropriate that the claims
    related to the February 2015 incident be allowed to proceed independently.

[34]

Accordingly,
    we see no error in the motion judges decision to grant partial summary judgment
    in this case.

V.

CONCLUSION AND DISPOSITION

[35]

For
    these reasons, we allow the appeal but only to the extent of permitting M.W.s tort
    claims to proceed, together with his
Charter

claims, in relation to the February 2015 incident. Costs
    of the appeal are to the respondents fixed at $5,000, inclusive of taxes and
    disbursements, which amount reflects the divided success on the appeal.

Paul Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


